Con Law Flashcards

Question

Meaning of the term "commerce" under the Commerce Clause [federalism: federal laws]

Answer 1

For purposes of the Commerce Clause, the term “commerce” includes “every species of commercial intercourse,” including transportation and traffic.

Answer 2

Foreign Commerce. Congress’s power to regulate foreign commerce is exclusive; with a few minor exceptions, states have no power to regulate or interfere with foreign commerce.

Answer 3

Congress may spend for the general welfare of the nation and to pay debts (note: this is the only time Congress may rely on the “general welfare” to act) . The spending clause is an independent source of federal power; spending is not limited to the other enumerated powers.

Answer 4

Congress’s power under the spending clause is even broader than its power under the commerce clause; in other words, the spending clause may be used to “regulate” (i.e., encourage) indirectly what Congress cannot regulate directly, subject to the following limitations: 1. The conditions imposed by Congress must be “related” to the purpose of the program; and 2. The federal statute must give states a “genuine choice” and not be unduly coercive (e.g., a federal law that threatens to withhold 100% of federal Medicaid funds from states refusing to expand their Medicaid programs is unduly coercive because it does not give states a “genuine choice.”)

Answer 5

For UBE purposes, Congress may tax anything as long as the tax is reasonably related to raising revenue, regardless of any other motives Congress may have had (e.g., to tax something out of existence). Exception: Taxes that violate the First Amendment

Answer 6

In the theater of war, Congress’s powers are virtually unlimited (but are shared with President) On the homefront, Congress has significant power both during and after war to remedy the effects of war, including the economic effects. The Commerce Clause has probably superseded the War Powers on the homefront.

Answer 7

Congress has the power to pass laws to enforce treaties A treaty cannot confer on Congress authority to act in a manner inconsistent with a specific provision of the Constitution.

Answer 8

§ 5 of the 14th Amendment authorizes Congress to prohibit discrimination by state and local governments, but may not be used to regulate private discrimination § 5 of the 14th Amendment is usually a wrong answer on the MBE, unless the question is testing exceptions to the 11th Amendment or the federal government is regulating purely state activities

Answer 9

§ 2 of the 13th Amendment may be used to regulate any private discriminatory behavior if such behavior constitutes a “badge or incident” of slavery, such as refusing to rent or sell property, or contract with, or admit a child to a private school, or employ a person because of race; unlike the Commerce Clause, § 2 of the 13th Amendment does not require a showing that the discrimination has a “substantial effect” on interstate commerce If Congress passes a law prohibiting racial discrimination by private entities, the best constitutional authority for such statute is usually the Commerce Clause; if the Commerce Clause will not work, then § 2 of the 13th Amendment is the best answer

Answer 10

Authorizes Congress to pass any laws relating to the ownership, transfer, disposal, or use of federal property (real, personal, intangible) Thus, Congress has “police” powers in the District of Columbia, and in federal parks, military bases, etc.

Answer 11

The following do NOT confer authority on the federal government to regulate: 1. Police Power 2. General Welfare (except in connection with the Spending Clause) 3. Necessary & Proper Clause (standing alone)

Answer 12

There are several checks on federal power in the Constitution that apply to both the federal government and the state governments, including the: 1. Due Process Clause 2. Equal Protection Clause (via reverse incorporation) 3. First Amendment 4. Takings Clause

Answer 13

There are also checks that apply only to the federal government: 1. 10th Amendment 2. 11th Amendment

Answer 14

General Rule: The 10th Amendment provides that state governments have all power not conferred upon the federal government (nor prohibited to the states) by the Constitution. Today, the 10th Amendment is simply a truism (i.e., states have those powers not given to the federal government, but since federal power has been construed so broadly, there is little left for the states) Thus, the 10th Amendment rarely limits Congress’s power, and is usually the wrong answer on the MBE

Answer 15

There are two modern limits on Congress’s powers under the 10th Amendment (or federalism generally): 1. NY v. US: The 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws (i.e., Congress may not “commandeer” state legislatures and may not issue “direct orders” to state legislatures, such as a federal law prohibiting state legislatures from authorizing sports gambling schemes) - But (a) the federal government could pass the law itself (assuming it has such authority, which it often will); or (b) the federal government could encourage the state to pass (or not pass) such laws under its spending power 2. Printz v. US: The 10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws - But (a) the federal government could enforce the law itself; or (b) the federal government could encourage state officials to enforce such las under its spending power

Answer 16

1. NY and Printz are limited to federal mandates that apply only to state governments - In Reno, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and Prinz, this law (a) applied to both states and private companies; and (b) did not impose an affirmative burden on the states 2. State courts, unlike state legislatures and executives, are bound to enforce federal law under the Supremacy Clause - Moreover, state courts must hear cases involving federal claims—they may not discriminate against actions brought to enforce federal law

Answer 17

General Rule: State governments may not be sued for money damages for federal claims. Thus: 1. A federal claim may not be brought against a state by (a) citizens of other states; (b) citizens of that state; or (c) foreign citizens 2. The 11th Amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court, or federal administrative tribunals (e.g., Federal Maritime Commission)

Answer 18

Times when federal claims may be brought against a “state” 1. A suit for prospective injunctive relief (including an order to pay—in the future—any money needed to comply with the injunction) against a state official in his or her capacity 2. Money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury 3. The state expressly waives its sovereign immunity 4. Suits brought by the United States or other states - A state may sue another state for money damages in an original action in the Supreme Court 5. Congressional Abrogation of State Sovereign Immunity. Congress may authorize private persons to sue state governments for money damages, but only in some very limited circumstances; these suits may arise out of Congress’s power under § 5 of the 14th Amendment, and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals. Congress must make a “clear statement” of its intent to abrogate the 11th Amendment 6. Proceedings arising under federal bankruptcy law (e.g., adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred by 11th Amendment) 7. Counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims

Answer 19

These checks apply only to state governments: 1. Supremacy Clause 2. Dormant Commerce Clause 3. Privileges and Immunities Clauses 4. Contracts Clause 5. Ex Post Facto, Bill of Attainder, and Full Faith and Credit Clauses

Answer 20

Federal laws are superior to state laws: 1. If a valid federal law expressly preempts state laws - Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states 2. If a valid federal law impliedly preempts state laws because - It is impossible to comply with both the state and federal laws without violating one (“Impossibility Preemption”); - The state law is an obstacle to the objective of the federal law (“Obstacle Preemption”); or - Congress has impliedly taken over the entire field (e.g., immigration) with a comprehensive law (“Field Preemption”)

Answer 21

The Commerce Clause serves two purposes: (1) it is authority for Congress to pass laws regulating interstate commerce; and (2) it impliedly limits states’ authority to interfere with interstate commerce.

Answer 22

For state laws, ask the following questions: 1. Does the state law discriminate in purpose or effect against interstate commerce or out-of-staters? If so, the state law is invalid. - A state discriminates if it hoards valuable things (e.g., jobs, natural resources) or insulates itself from regional or national problems (e.g., garbage, nuclear waste, competition). 2. If the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce.

Answer 23

Test: A nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant; under such test, a court may invalidate a state law if: 1. There are alternatives that impose less burden on interstate commerce; or 2. The law conflicts with the laws of other states (and thus there is no national uniformity)

Answer 24

A state (or local government) may discriminate if: 1. Congress has authorized states to discriminate against interstate commerce - But Congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause 2. The state is a “Market Participant,” as opposed to a market regulator; in such cases, a state may discriminate in favor of its own residents; these are situations in which the state itself is the seller or provider of goods or services (e.g., a state owned cement plant). However, the “market participant” exception does not authorize: - State discrimination as to “fundamental rights” (e.g., private employment, practice of law, civil liberties) because such discrimination violates Article IV’s Privileges and Immunities Clause - State to impose discriminatory regulations in a downstream market (e.g., Alaska could not require buyers of Alaskan timber to process the timber in Alaska) 3. The state favors a public entity, such as: - A county ordinance requiring waste haulers collecting trash in that county to bring trash to a state-created waste facility - A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds

Answer 25

This clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities. A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated unless the state shows a substantial justification for the discriminatory treatment and that there are no less discriminatory means to solve the problem. The Article IV Privileges and Immunities Clause has been used to invalidate: 1. A state law charging nonresidents substantially more for a commercial fishing license than residents (but not a state law charging nonresidents substantially more for a recreational hunting license); 2. A state law requiring state residency to be licensed to practice law in the state; and 3. A state (or local) law requiring private employers to give hiring preference to state residents

Answer 26

this clause prohibits states form denying their citizens the privileges and immunities of national citizenship, such as the right to interstate travel and the right to vote in federal elections. This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state. It was used to invalidate a California law limiting new residents, for the first year they live in California, to the welfare benefits they would have received in the state of their prior residence.

Answer 27

Corporations and aliens are not considered “citizens” for purposes of the privileges and immunities clauses.

Answer 28

No state or local government shall impair the obligations of contracts The Contracts Clause does not apply to the federal government The Contracts Clause applies only to existing contracts, not future contracts or future profits

Answer 29

If a state law impairs the obligations of a contract between two private parties, courts apply the following test: (1) Does the law “substantially” impair a party’s rights under an existing contract? (2) If so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose? This test is similar to the Rational Basis Test; as a result, courts are highly unlikely to invalidate a state law that impairs a private contract.

Answer 30

If a state law impairs a contract in which the state is a party, the law will be upheld only if it is reasonable and necessary to serve an important public purpose. This test is similar to Strict Scrutiny.

Answer 31

Ex Post Facto Clauses (federal and state): An ex post facto law imposes criminal punishment for an act that occurred before the law became effective. The clause is also violated where the government prescribes greater punishment than was prescribed when the act was committed, reduces the evidence necessary for a conviction, increases the statute of limitations for a crime, or retroactively reduces an inmate’s “good time” or “early release” credits.

Answer 32

A bill of attainder is a legislative act that inflicts punishment (e.g., imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities) on named individuals or on easily identifiable members of groups.

Answer 33

Final judgments on the merits rendered by a state court with jurisdiction must be recognized and enforced by other states as a matter of right. A second court may not retry any matter, factual or legal, properly at issue in the first proceeding. In other words, the first judgment serves as a bar to suits brought in other states. By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts.

Answer 34

A state has no power to regulate the activities of the federal government, unless Congress consents.

Answer 35

A state may not tax the federal government, including its land or instrumentalities. Test: If the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional. Exceptions: (1) a state may impose non-discriminatory income taxes (i.e., the tax does not discriminate against person employed by the United States) on the salaries of federal employees (paid by the employee); (2) a private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis.

Answer 36

The federal government may tax or regulate state government activities as long as the tax or regulation applies to both the private sector and public sector.

Answer 37

State taxes that discriminate against interstate commerce (i.e., a higher rate for interstate commerce than for intrastate commerce) violate the Dormant Commerce Clause (and thus are unconstitutional), unless such discrimination has been approved by Congress a. Examples: (1) if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state; (2) residents who pay taxes in another state for income earned in that state must be given a credit against state and local income taxes in their home state to avoid double taxation

Answer 38

Nondiscriminatory Taxes: A state may tax interstate commerce and intestate businesses if: 1. There is a substantial nexus between the activity or property taxed and the state (i.e., such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of internet sales) 2. The tax must be fairly apportioned (i.e., the tax should be based on the extent of the taxable activity or property in the state; otherwise the taxpayer would be subject to multiple taxation) 3. The tax must be fairly related to the services or benefits provided by the state

Answer 39

If the constitutionality of a statute is at issue, ask: Is the statute state or federal? If it is federal, ask two further questions: 1. Does the Constitution authorize Congress to regulate in this area? 2. If so, does this particular statute offend any constitutional check on federal power? If it is a state statute, then ask only one question: Does this particular statute offend any constitutional check on state power?

Answer 40

If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test: 1. If Congress has explicitly or implicitly approved the president’s action, the president has the full power of the government to make law 2. If Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?) 3. If Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional

Answer 41

If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound funds Congress has ordered spent

Answer 42

Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making

Answer 43

A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause

Answer 44

A federal statutory line-item veto is unconstitutional

Answer 45

For principal officers (e.g., cabinet members), the president nominates and the senate confirms For inferior officers (positions created by Congress, such as the independent counsel), Congress may give the appointment power to president alone, a department head, or the courts Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may not appoint anyone with administrative, enforcement, regulatory, or executive duties

Answer 46

General Rule: the president may fire any executive official for any reasons Exception: Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president (e.g., an independent counsel or a person who has quasi-judicial duties) Congress may not retain the power to remove an executive official; it only has impeachment power

Answer 47

Treaties are signed by the President and ratified by the Senate

Answer 48

If laws are in conflict, the following preeminence governs: 1. U.S. Constitution 2. Federal Statutes/Treaties (last in time controls) 3. Federal Executive Agreements/Orders 4. Federal Regulations 5. State Law

Answer 49

The president may use executive agreements as substitutes for treaties; no senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)

Answer 50

The power to recognize foreign states lies exclusively with the president, and the President and his subordinates are the exclusive official representatives of the United States in foreign affairs

Answer 51

The war powers are shared between the president and Congress; Congress declares war and allocates money for the military; the president alone controls troops and deployment

Answer 52

The President is probably immune from criminal prosecution while in office Executive Privilege: The president’s communications and papers are presumptively privileged, but the president must comply with subpoenas from criminal courts or grand juries

Answer 53

The President has absolute immunity from civil liability for claims (at least those arguably based on official actions) arising while in office Presidential aids and advisors have a qualified immunity from civil damages; such immunity will not protect them from violations of clearly established constitutional rights The President is subject to civil liability for claims arising prior to taking office

Answer 54

The president, vice-president, judges, and “officers” of the U.S. may be impeached The house “impeaches” (i.e., indicts) by a majority vote; the senate convicts by a 2/3 vote Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions

Answer 55

The president has the power to pardon and commute sentences for federal crimes, but not state crimes or civil liability The president’s pardon power may not be limited by Congress The president may not pardon a person for “crimes” for which he or she has been “impeached”

Answer 56

The Speech and Debate Clause protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate. The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress. Exceptions: 1. The Speech or Debate Clause does not extend to state legislators. 2. Speeches and publications made outside of the House or Senate are not protected.

Answer 57

The Constitution applies only to government action; it does not apply to government inaction. Moreover, the Constitution generally does not apply to the actions or inactions of private individuals and companies. Congress may, by statute, require private individuals to conform to constitutional standards

Answer 58

There are some instances where private individuals and companies will be considered “state actors” subject to the 14th Amendment If a private person or company is performing a traditional, exclusive government function (e.g., operating a company town or conducting a primary election) The government affirmatively authorizes, encourages, or facilitates an unconstitutional activity; for example: 1. Court enforcement (equitable or legal) of a racially restrictive covenant in a deed or lease 2. Peremptory challenges (civil and criminal) 3. The government leases space to a business that discriminates 4. A private association that regulates high school athletics with mostly governmental members and funding

Answer 59

A private company or association will not be considered a “state actor” solely because 1. The government provides its funding, even 99% of its funding 2. The government has licensed the company 3. The government has approved the company’s name and charter 4. The association has government members 5. The government regulates the company 6. The company is working under a government contract

Answer 60

By its terms, the Bill of Rights applies only to the federal government. The Supreme Court, however, has held that all of the Bill of Rights have been incorporated into the 14th Amendment and thus made applicable to state and local governments, except for the: Fifth Amendment’s right to a grand jury in a criminal case Seventh Amendment’s right to a jury in a civil case

Answer 61

Understanding the levels of scrutiny is essential to answer questions related to the: 1. Due Process Clause (Substantive) 2. Equal Protection Clause 3. First Amendment

Answer 62

1. The Rational Basis Test: the challenger must prove that the law is not rationally related to any legitimate government purpose (actual or conceivable); this is the default test in due process and equal protection cases; “legitimate” means permissible 2. Intermediate Scrutiny: the government must prove that the law is substantially related to an important government interest 3. Strict Scrutiny: the government must prove that the law is necessary (or narrowly tailored) to achieve a compelling government interest

Answer 63

There are two due process clauses in the Constitution. The due process clause of the 5th Amendment applies to the federal government, and the due process clause of the 14th Amendment applies to state and local governments. The two clauses have been construed identically.

Answer 64

Due process has two parts: procedural due process and substantive due process

Answer 65

Procedural Due Process requires the government to use a fair process and procedures before depriving an individual of life, liberty, or property

Answer 66

Before the government may deprive an individual of liberty (i.e., freedom from confinement) or property (e.g., government job, government benefits, government license), the government must give the person notice of termination (including the reasons for termination) and some form of hearing.

Answer 67

There is a right to procedural due process only when the government deprives and individual of liberty or property; there is no such right when the government acts generally (e.g., a statute changing the eligibility requirements for welfare benefits).

Answer 68

Examples of the process due in particular cases: 1. Welfare benefits: notice and an evidentiary hearing prior to termination 2. Jobs: pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. Suspension from school for more than 10 days: notice and opportunity to explain (no evidentiary hearing required) 4. Prejudgment attachment: preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. Driver’s license suspension: pre-suspension hearing, except for refusal to take a Breathalyzer 6. Termination of parental rights: pre-termination notice and hearing with a clear and convincing evidence standard 7. Termination of business license: pre-termination notice and some form of fair hearing

Answer 69

Substantive Due Process is designed to ensure that laws are reasonable and not arbitrary

Answer 70

If a law directly and substantially impairs a “fundamental right,” the court will apply Strict Scrutiny and the law will probably be invalidated. Fundamental rights are those rooted in the history and traditions of America. They include not only those rights enumerated in the Bill of Rights, but also certain implied privacy rights.

Answer 71

1. The right to control the education and upbringing of one’s children 2. The right to acquire and use contraceptives (regardless of age) 3. The right to marry (including same-sex marriages) 4. The right to procreate (i.e., thus, no forced sterilization) 5. The right to custody of one’s children (e.g., a grandparent visitation law has been found to violate this right) 6. The right of family members to live together (includes extended family, but not unrelated persons) 7. The right of a competent adult to refuse life-sustaining medical treatment, hydration, and food - A state may require clear and convincing evidence of the patient’s intent to refuse life sustaining medical treatment, hydration, and food - There is no right to commit suicide or for assistance to commit suicide - A state may force parents to obtain medical care for children 8. The right to engage in adult, consensual, non-commercial sex in one’s home

Answer 72

ii. Abortion Although a woman has a constitutional right to decide to terminate a pregnancy, that right is subject to its own form of scrutiny: 1. Test for pre-viability regulations: does the regulation impose an undue burden (i.e., a substantial obstacle) on the woman’s right - The following regulations impose an undue burden: a spousal consent or notification requirement; requirement that doctor have “admitting privileges” at nearby hospital; requirement that clinics have hospital-grate facilities - The following regulations do NOT impose an undue burden: 24-hour waiting period; requirement that abortions be performed by a licensed physician; parental notice/consent for a minor’s abortion, if the law contains a judicial bypass 2. Test for post-viability abortions: a state may ban such abortions, as long as there are exceptions for abortions necessary to protect the life or health of the mother.

Answer 73

There is no right to government-subsidized abortions, and there is no requirement that public hospitals perform abortions

Answer 74

If the government regulation does not interfere with a fundamental right (or abortion), the regulation will be subject to the rational basis test and thus will probably be upheld. Exception: “Grossly excessive” punitive damage awards violate the Due Process Clause Punitive damages that exceed compensatory damages by a ratio of more than 9:1 are probably “grossly excessive” Punitive damages are less likely to be found excessive if the defendant committed an intentional or reckless tort causing serious personal injuries

Answer 75

There are two fundamental rights protected by the equal protection clause: 1. Right to Vote 2. Right to Travel

Answer 76

There is a fundamental right to vote in national, state, and local elections; restrictions on voting, other than those based on age (18), residency, and citizenship, are generally invalid

Answer 77

1. A requirement that voters have children in order to vote in a school board election 2. Poll taxes or educational requirements 3. Property ownership (except for “water district” elections)

Answer 78

1. Presentation of government-issued photo I.D. | 2. Proof of residency for a short period (e.g., 30 days)

Answer 79

One Person-One Vote rule (e.g., the seats in both houses of a state legislature must be apportioned on a population basis) 1. Appointments of officials and at-large elections are valid as long as not used to suppress minority voting power 2. Racial gerrymandering must meet strict scrutiny if race was a “predominant factor” in drawing the district’s lines 3. State may measure districts by counting “total population” instead of eligible voters

Answer 80

Ballot fees and restrictions are subject to strict scrutiny Filing fees—even if reasonable in amount—must be waived for indigent candidates

Answer 81

Racial restrictions on voting are invalid under the 15th Amendment The 15th Amendment requires proof of “purposeful intent” to discriminate on the basis of race

Answer 82

There is a fundamental right to travel interstate and to be treated like a long-term resident once becoming a permanent resident of a state Laws that prohibit entering or leaving a state must meet strict scrutiny Durational residency requirements are subject to strict scrutiny, but some have been upheld

Answer 83

Durational residency requirements are subject to strict scrutiny, but some have been upheld 1. One year for welfare benefits: invalid 2. One year for subsidized medical care: invalid 3. One year to vote: invalid 4. One year for a divorce: valid 5. One year for reduced tuition at public universities: valid

Answer 84

One year for reduced tuition at public universities: valid - Benefits that distinguish between long-term and short-term residents are subject to strict scrutiny (and probably also violate the 14th Amendment’s Privileges and Immunities Clause) - Federal restrictions on international travel are subject only to the Rational Basis Test

Answer 85

Laws denying indigents access to the courts where some fundamental liberty interest is at stake have been invalidated, including: 1. The fee for a trial transcript, which was necessary for a convicted criminal to appeal 2. The filling fee required to initiate divorce proceedings 3. The fee charged for blood tests in paternity proceedings 4. The fee to prepare the appellate record in a termination of parental rights action

Answer 86

But courts have upheld fees where no fundamental liberty interest was at stake, including: 1. The fee for filing a bankruptcy petition 2. The fee to secure review of eligibility for welfare benefits

Answer 87

The Equal Protection Clause guarantees that similarly situated persons will be treated alike If a law purposely discriminates against a group, the law will be subject to the equal protection clause of the 14th Amendment or the due process clause of the 5th Amendment for the federal government (i.e., reverse incorporation). If the law does not “purposely” discriminate, it will be subject to the rational basis test.

Answer 88

The level of scrutiny to apply will depend on what group is being singled out. There are three classifications for equal protection: 1. Suspect classes 2. quasi-suspect classes 3. all other classifications

Answer 89

Discrimination in favor of or against suspect classes is subject to strict scrutiny and will rarely be upheld. There are three suspect classes: 1. Race 2. National origin (ancestry) 3. Alienage (sometimes)

Answer 90

Laws that treat documented residents (legal residents who are not U.S. citizens) differently than U.S. citizens are sometimes subject to strict scrutiny 1. Federal laws: Rational Basis Test only 2. State laws: Strict Scrutiny (e.g., state laws requiring U.S. citizenship to practice law, become an engineer, receive welfare benefits, qualify for civil service jobs, or receive a notary public license). Exceptions: state laws concerning self-government (voting, jury duty, elective office, police officers) and the democratic process (public school teachers, probation officers) are subject to the Rational Basis Test

Answer 91

Discrimination in favor of or against quasi-suspect classes is subject to intermediate scrutiny and will rarely be upheld. There are two quasi-suspect classes: 1. Gender: the government must show an “exceedingly persuasive justification” for laws that intentionally discriminated based on traditional stereotypes. - But laws designed to remedy past discrimination against women (e.g., different methods used to calculate social security benefits or different periods for military promotions) are valid 2. Non-Marital Children: A law that treats non-marital children (i.e., those born out of wedlock) differently than marital children is subject to intermediate scrutiny. - Example of a valid law: a law that requires non-marital children to prove paternity before inheriting from their father is valid because it treats some non-marital children (i.e., those that can prove paternity) the same as marital children - Example of invalid law: a law that prohibits all non-marital children from inheriting from their fathers, but allows all marital children to so inherit, is invalid

Answer 92

Except for classifications based on suspect or quasi-suspect classes, all other classifications are subject to the Rational Basis Test, and thus will generally be upheld. This includes classifications based on age, wealth, education, disabilities, etc. Such classifications, however, must be based on “legitimate” government interests. The Court has held that irrational prejudice, societal fear or the desire to harm a politically unpopular group (gay men, mentally retarded adults, children of illegal aliens, hippies) is not a “legitimate” government interest.

Answer 93

Federal, state, and local governments usually have eminent domain power Governments may take private property for public use, but the private landowner is entitled to just compensation. Real property, personal property, and intangibles may be the subject of a “taking.”

Answer 94

Question One: Has there been a “taking” of a property? Question Two: If there has been a taking, was it for a “public use?” Question Three: if there has been a “taking” for a “public use,” the government

Answer 95

1. Has there been a permanent, physical invasion of property (per se taking)? - Government invades, condemns, destroys (floods) or confiscates private property; or - Government orders private landowner to permit public or third-party access 2. If not, has a government regulation diminished the use and/or value of private property? - All economically viable use = per se taking (unless the regulation was designed to suppress a common law nuisance) - Otherwise, Ad Hoc Balancing Test: A. The character of the government action B. The protection of reasonable, investment-backed expectations C. The economic impact of the regulation on the particular owner 3. If not, has the government conditioned a building or construction permit or zoning variance or petition on the owner’s agreement to grant an easement to the government or the public or to set aside land for public or third party use or to make a monetary exaction? - Test: is there an essential nexus between the condition and a legitimate government interest and is the condition “roughly proportional” to the projected impact of the owner’s development? If not, it is a taking.

Answer 96

Answer: Yes

Answer 97

The government must pay full market value: the loss to the owner, NOT the gain to the taker The landowner is entitled to damages for loss of business or “good will” or for moving expenses

Answer 98

The Second Amendment guarantees the right to purchase, carry, and use typical weapons (e.g., handguns) for the purpose of self-defense. The Second Amendment does not guarantee the right to carry “dangerous or unusual weapons.” Gun control laws are subject to at least intermediate scrutiny. The Second Amendment’s right to keep and bear arms applies to state and local governments via the 14th Amendment.

Answer 99

The First Amendment prohibits Congress from 1. Making any law abridging the freedom of speech or the press 2. Making any law abridging the freedom of religion (Free Exercise Clause) 3. Establishing a religion (Establishment Clause) The restrictions apply to state and local governments via the 14th Amendment

Answer 100

If the law regulates the content of the speech, the law must pass Strict Scrutiny By contrast, content-neutral regulations (e.g., no amplified music after 10 p.m. or no loud speakers) are subject only to Intermediate Scrutiny (i.e., narrowly tailored to a significant government interest)

Answer 101

Those that discriminate on the basis of subject matter (e.g., “all picketing is banned except for labor picketing”) Those that discriminate on the basis of viewpoint (e.g., “all picketing is banned except for pro-labor picketing”)

Answer 102

There are certain categories of speech that are unprotected or less protected and thus may be regulated or banned based on content. These categories are: 1. Clear and present danger 2. True threats and fighting words 3. Obscenity, pornography, and profanity

Answer 103

Speech may be banned where it (a) is directed (i.e., intended) to produced or incite (b) imminent lawless action, and (c) is likely to produce or incite such action. However, most statutes attempting to ban such unprotected speech are unconstitutionally overbroad and/or vague

Answer 104

Threats: “true threats” – statements meant to communicate an intent to place an individual or group in fear of bodily harm—are not protected by the First Amendment Examples: speech that willfully threatens the life of the president or cross burning with the intent to intimidate

Answer 105

Fighting words: speech personally directed to a specific listener or group that is likely to incite a physical retaliation (i.e., a direct personal insult or an invitation to exchange fisticuffs) may be banned. But for the past 50 years, all fighting words laws have been found to be either unconstitutionally vague (e.g., laws prohibiting “offensive, annoying, or abusive” language) or not view-point neutral (law prohibiting various types of hate speech).

Answer 106

Obscenity: obscenity is not protected by the First Amendment. Obscenity is defined as a depiction of sexual conduct that, taken as a whole, by an average adult, applying contemporary community (state or local) standards: Test 1. Appeals to the prurient (i.e., shameful or morbid) interest in sex; 2. Portrays sex in a patently offensive way that is specifically defined by state (or federal) law; and 3. Does not, taken as a whole, have serious literary, artistic, political, or scientific value, using a national reasonable person standard --- The government may not ban material suitable for adults solely to protect children (e.g., banning “indecent” speech on the internet to protect minors is invalid because it amounts to a total ban for adults) Private possession of obscenity is protected by the First Amendment, but private possession of child pornography is not Adult pornography—as opposed to obscenity—is protected speech

Answer 107

Child pornography: material depicting sexual conduct involving actual minors may be completely banned, even if not “obscene”

Answer 108

Adult book stores, adult theaters, and strip joints may be limited to a particular part of the city by zoning ordinances if 1. The law is designed to promote a local interest (e.g., protect residential character of neighborhood, avoid crime or parking problems) and 2. The law does not prohibit all such entertainment in the community (a zoning law may limit it to a very small part of the city)

Answer 109

Profanity. Profane and indecent language is generally protected by the First Amendment. Exceptions: broadcast media (but not cable or internet) and public schools (K-12)

Answer 110

Defamatory speech is not protected by the First Amendment (see Torts outline) Laws punishing false statements that do not constitute defamation or commercial speech (e.g., wearing unauthorized military medals) are subject to strict scrutiny (because they are content-based) and will rarely be upheld

Answer 111

Privacy Torts/Crimes. The media may not be subject to criminal or civil liability for publishing truthful information about a public matter (e.g., rape victim’s name) that was either lawfully obtained (e.g., from court records) or was illegally obtained by someone other than the media.

Answer 112

Neither the public nor the press has a constitutional right to government information or to attend federal government meetings, etc. except for criminal trials (all important parts of a criminal trial must be open to the public and the press).

Answer 113

False, misleading, and deceptive commercial speech, as well as the advertisement of illegal activities, may be banned Under this rule, a state may ban attorney in-person solicitation of fee-paying clients and contact with accident victims within 30 days of an accident

Answer 114

All other commercial speech is protected by the First Amendment and may be regulated only if the government satisfies a test similar to Intermediate Scrutiny (i.e., the government shows that the law directly advances a substantial interest and is no more extensive than necessary).

Answer 115

Under this test, the following types of laws have been invalidated: 1. Total or near bans on the advertisement of legal products or services, such as abortions, contraceptives, prescription drug prices, alcohol prices, alcohol content 2. Laws banning news racks for “commercial” publications, but allowing news racks for newspapers 3. Laws banning tobacco ads within 1,000 feet of schools 4. Laws banning “for sale” signs on real estate 5. Laws banning in-person solicitation by accountants

Answer 116

These include major sidewalks, streets, and parks. For the government to regulate speech in such public forums, the regulation must be (a) content-neutral, (b) a reasonable time, place, and manner restriction, (c) narrowly tailored to serve a significant (or substantial) government interest, and (d) must leave open alternative channels of communication. The government is NOT required to use the least restrictive means of accomplishing its goals In a public forum, content-based restrictions on speech must survive strict scrutiny

Answer 117

These are non-public forums that the government has opened by policy or practice to speech. Designated public forums are subject to the same rules as public forums, but the government may close the property entirely at any point. Example: if a high school opens its classroom after hours to community groups, it must allow access to all groups, including religious groups (i.e., it must be content-neutral).

Answer 118

All other government property is non-public. The government may regulate speech in non-public forums if the regulation is (a) viewpoint neutral, and (b) reasonably related to a legitimate government purpose. Examples of non-public forums: military bases, schools, government workplaces, courthouses (and grounds), prisons and jails (and grounds), post office sidewalks, street signs, etc. (no right to post signs), airport terminals, political debates on public television, ad space on city buses, government radio stations, and polling places on election day.

Answer 119

A limited public forum arises when the government opens a non-public forum but limits the expressive activity to certain groups or to certain subjects, such as state university meeting facilities available for student groups or open school board meetings. Limited public forums are subject to the same test as non-public forums.

Answer 120

Public Schools (K-12). Public school students do not lose all free speech rights at school. However, school officials may ban student speech that they reasonably forecast will cause a substantial disruption to school activities. School officials must have a specific, articulable reason for forecasting the disruption; they cannot rely on undifferentiated fear or apprehension of disturbance. School officials may also ban speech that is vulgar or lewd or speech that promotes (explicitly or implicitly) the illegal use of drugs School officials may also control school-sponsored speech (e.g., school newspaper) if the control reasonably relates to a legitimate pedagogical concern.

Answer 121

If the speech is made pursuant to an employee’s official duties, a government employer may punish the employee for such speech, even if it involves a matter of public concern. If the speech is not made pursuant to the employee’s official duties, the following tests apply: If the speech does not involve a matter of public concern (e.g., petition circulated intra-office regarding the employer’s transfer policies), the government may punish the employee if the speech was disruptive to the work environment. If the speech involves a matter of public concern (e.g., letter to the media attacking superintendent’s proposals to raise revenue), the court will balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interests in efficient performance of public service

Answer 122

Speech may be regulated in prisons if reasonably related to legitimate penological interests. A restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored.

Answer 123

The government may regulate symbolic speech if (a) the regulation furthers an important government interest (b) that is unrelated to the suppression of speech, and (c) the burden on speech is no greater than necessary

Answer 124

Under this test, the Supreme Court has upheld regulation of the following conduct: - Draft card burning, public nudity, nude dancing, littering, overnight sleeping in public parks However, the Court has invalidated regulation of inherently expressive conduct, such as flag burning, cross burning (unless done with the intent to intimidate others), swastika painting, and the wearing of black armbands by students.

Answer 125

Prior restraints on speech are presumptively void. There are three types of prior restraints. 1. Judicial orders prohibiting speech 2. Licensing and permit schemes 3. Physical seizure or prohibition

Answer 126

For a court to enter an injunction or other order prohibiting speech, such as a gag order on the press, the court must satisfy Strict Scrutiny, which it will rarely be able to do. According to the Collateral Bar Rule, a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contemp. A prior restraint is permissible when the parties have contractually agreed to the restraint (e.g., court enforced agent’s agreement to give CIA prepublication review of any proposed publications) or in case of national security (e.g., First Amendment would not bar injunction against publishing the date of sailing for troop ships in time of war).

Answer 127

If there is an ordinance or other law requiring a person to obtain a permit or license to speak, march, etc., such system must provide (1) definite standards for the granting of the license or permit; (2) no discretion in the granting official (including discretion to charge different amounts); (3) prompt issuance; an d(4) prompt judicial review. If a licensing scheme is procedurally improper, the speaker may ignore the scheme and raise a First Amendment challenge in later proceedings. If the scheme is facially proper, the speaker must follow these procedures or he or she will be barred from raising First Amendment issues in later prosecution.

Answer 128

The government physically seizes the means of speech (e.g., printing press, film, computer) or prohibits certain types of speech from using the postal system.

Answer 129

The press (and other media) are subject to general business regulations and taxes, but may not be singled out for special regulations or taxes. There is no “reporter’s privilege” under federal law; thus, reporters may be forced to divulge their sources at grand jury proceedings and trials.

Answer 130

There is an implied freedom of association in the First Amendment, which prohibits regulation (including anti-discrimination laws) of intimate, private groups and clubs, but not large clubs with unselective membership or that are used for business contacts. Also, expressive groups (Boy Scouts) can have exclusive membership, even if the group was not formed for the sole purpose of propagating a particular message.

Answer 131

The government may limit the amount a person may give to a particular candidate, but may not limit the amount a person or group may spend on an election or referendum. The government also may not limit the amount a person spends on his or her own campaign. But the government may ban personal solicitation of funds by judicial candidates.

Answer 132

The government may require a person to swear to support the constitutions (state and federal) or swear to oppose unlawful attempts to overthrow the government to obtain government employment or become a member of the bar. Persons may not be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea.

Answer 133

A person may not be punished or precluded from public employment, etc. because of membership in an organization (e.g., the communist party), unless that person was a knowing and active member with the specific intent to further the organization’s unlawful aims. Laws that require groups to disclose membership are subject to strict scrutiny.

Answer 134

Government funding may be content-based, as long as it is view-point neutral (e.g., the government may choose artists, etc. to which wo give grants) But if a college give financial support to student groups, it may not exclude religious groups. The First Amendment is violated when money is taken from nonconsenting government employees for a public-sector union; employees must choose to support the union before anything is taken from them.

Answer 135

Laws that are vague or overbroad are not enforceable, and may be facially challenged (even by those whose speech would not be protected). A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”). A law is vague if a reasonable person would not know what speech is prohibited (e.g., “all First Amendment activities”). A vague or overbroad statute may be saved if the courts of that state have limited its application to unprotected speech.

Answer 136

The First Amendment protects a person’s right not to speak (e.g., a person may tape over the statement “Live Free or Die” on license plates; a person may not be forced to salute or pledge to the flag; and a clinic may not be forced to give patients a government-drafted notice about the availability of abortion and contraception); moreover, a person has the right to speak anonymously.

Answer 137

The First Amendment does not protect the publication of a private performance (without the consent of the performer) or the republication of copyrighted material (without the consent of the author). In addition, the government’s denial of a trademark application on grounds that the trademark is “derogatory” is an unconstitutional suppression of free speech.

Answer 138

The First Amendment prohibits Congress from passing any law abridging the freedom of religion. The 14th Amendment incorporates this clause, thus making it applicable to state and local governments. “Religion” includes any sincerely held religious-like beliefs.

Answer 139

General Rule: The free exercise clause may not be used to challenge a neutrally applied law of general applicability (e.g., criminal laws or tax laws). If, however, the purpose of a law is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, that law will be subject to strict scrutiny (e.g., the Court invalidated a law banning animal sacrifice that was motivated to exclude a religious sect from the city).

Answer 140

1. A person who quits a job or fails to take a job because of sincerely held religious beliefs may not be denied unemployment benefits (e.g., refusing to work on Sabbath, refusing to produce armaments); a person can, however, be denied such benefits if he or she is fired for a violation of the criminal laws (e.g., peyote use). 2. Religious oaths may not be required for government employment. 3. Amish children are exempt from mandatory secondary education. 4. Religious organizations are exempt from employment discrimination suits brought by ministers and other ministerial employees. 5. A state may not ban religious groups from receiving government benefits (e.g., a state program to provide free playground materials must provide such materials to eligible religious and nonreligious organizations).

Answer 141

Congress shall make no law respecting the establishment of religion. The 14th Amendment incorporates this clause, thus making it applicable to state and local governments. There is a three-part test (i.e., the Lemon test) for Establishment Clause issues; to be valid: 1. The law’s primary purpose must be secular 2. The effect of the law must not be to advance or inhibit religion (in other words, the government must not symbolically endorse religion) 3. There must not be excessive movement entanglement with religion

Answer 142

Activities. Government sponsored religious activities in public schools (elementary, middle, and high school) are unconstitutional 1. All school prayer (including voluntary, silent, and student-run) during school, at graduation, or at sporting events is unconstitutional 2. Bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional, but the academic study of religion is constitutional 3. Posting the Ten Commandments in public schools is unconstitutional 4. But schools may allow students to leave early to attend religious instruction off-campus

Answer 143

As a general rule, government programs providing assistance to all elementary school students—including students at religious schools—is constitutional, but there are a few exceptions Constitutional aid: free secular textbooks; reimbursement for transportation to and from school; public health services; reimbursement for diagnostic and state-prepared tests; sign-language interpreters; remedial education, guidance counseling Unconstitutional aid: transportation for field trips, payment of teachers’ salaries, reimbursement for teacher-prepared tests

Answer 144

Direct subsidies to religious schools are impermissible, but vouchers to parents, which may be used for religious and non-religious schools, are constitutional. In addition, tax deductions and credits for tuition, school supplies, etc. are valid if they are available to the parents of all students

Answer 145

Holiday scenes are permissible if they include both religious and non-religious symbols (e.g., a snowman) The 10 Commandments may not be displayed on government property, unless they are displayed with other historical documents (e.g., Magna Carta, Declaration of Independence) in an appropriate context Government action that prefers one religious sect over another violates the Establishment Clause (e.g., a law creating a public school for Jewish students is unconstitutional) State legislatures and town councils may have a chaplain for historic reasons

Con Law Flashcards

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